If the tax, for the non-payment of which the property in dispute was seized, can be regarded as a taxation of his property as a resident, the defendant has made out his justification ; otherwise not. The general law in relation to taxes, st. 1821, c. 116, § 15, provides, that taxes shall be assessed and apportioned according to the then last tax act of the legislature. The tax acts which should have governed in the assessment of these taxes, makes an essential difference, both in form and substance, in the modes of assessing resident and non-resident taxes.
The tax bills show the plaintiff to have been a resident in *102Peru, and assessed as such, during the years 1837 and 1838, and that the lands were taxed as non-resident. The tax cannot be supported as a tax on the property of a resident, because the regulations prescribed for the assessment of such property were not pursued. They must then be regarded as a tax on non-resident property — and being so, the justification setup has failed.
Whether this question was or not properly submitted to the • jury, has become immaterial, inasmuch as their decision was correct.
As in this case, the plaintiff is in no event entitled to recover, the right to open and close becomes immaterial. We have, however, examined the case of Ayer v. Austin, 6 Pick. 225, and are satisfied that in this respect the ruling of the Court below was correct. It is true, st. 1831, c. 514, requires the general issue in all cases to be pleaded. The Court cannot know that the general issue would not have been pleaded without the statute requisition, and that it is pleaded compulsorily. There is no record made by which that fact can be known. We think the practice in this respect is not to be changed.